Matthew Fleharty

44 minutes ago, here_2_help said:

1. It doesn't matter whether my argument holds water since we are negotiating. Any argument that gets the other side to hesitate, to blink, to lose confidence, is a valid argument.

I disagree - misrepresenting facts is not negotiating in good faith...

41 minutes ago, jfeibel said:

Since the FAR doesn't apply to NAF; and you want a put a contract in place (or would you call it something else a non-FAR Contract)? with a contractor, would you be bound be FAR since you are using a contract.  Would a price evaluation need to be conducted that is follows the FAR? 

No, the FAR is only Applicable when (according to FAR 1.104):

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The FAR applies to all acquisitions as defined in Part 2 of the FAR, except where expressly excluded

See definition of "acquisition" which states (emphasis added):

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“Acquisition” means the acquiring by contract with appropriated funds of supplies or services (including construction) by and for the use of the Federal Government through purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated, and evaluated. Acquisition begins at the point when agency needs are established and includes the description of requirements to satisfy agency needs, solicitation and selection of sources, award of contracts, contract financing, contract performance, contract administration, and those technical and management functions directly related to the process of fulfilling agency needs by contract.

Since you're using non-appropriated funds the FAR, including its pricing policies, do not apply.

Take a moment and re-read your original post jfeibel.  Do you notice how it contradicts itself?  Why state upfront that "the FAR doesn't apply to NAF" then immediately disregard that statement to inquire as to whether or not you would "be bound be [sic] FAR since you are using a contract"?

Desparado,

While I'm not Vern, here are some examples of what I consider Discussions versus Questions:

13 minutes ago, Vern Edwards said:

you don't get "guarantees" with contracts. You get only promises, and there is no guarantee that you can enforce them, not even in court.

If there was a book of contracting aphorisms, this statement would certainly be in there.

Lotus - you might get the help you're looking for if you properly responded to Vern's original request by actually providing the solicitation number so he (or others) could review it in its entirely rather than cherry picked portions of the document.

When you say “defective pricing” are you trying to inquire about “defective certified cost or pricing data?”  See FAR 15.407-1.

34 minutes ago, Mildly Entertaining said:

If they give different answers, who do I go with?

Assuming you're the individual with decision authority in all of this, I recommend you go with the individual who can give you a sound explanation for his/her position.  The individual should be able to explain what the issue is and what the rule(s) is/are in relation to that issue, apply the rule(s) to the issue, and reach a valid conclusion (see syllogism or deductive reasoning).

Other decision methods include flipping a coin or choosing the person whose answer best aligns with your preconcieved opinion (neither of which I'd recommend).

50 minutes ago, C Culham said:

Matthew - I would appreciate it if you would hold off on any comments that are based on false impression and false information attributed to me.   You are more than welcome to ask me directly and then fashion your posts based on my direct response.   I think doing so would add value to the discussion rather than detracting from it.  Thanks! 

Carl, 

Falsely assuming comments were directed at you detracts from the discussion - my comments were broad and general.  You’ll know if I’m directing a comment at you (like with this one).

46 minutes ago, Vern Edwards said:

Finally, I see that I have become the subject of historical searches for instances of, what, inconsistency? That's fair. But with 7,615 posts under my belt, far more than anybody else, if I were never inconsistent I would consider myself to be an idiot. (I'll bet that at least some of you know the quote from Emerson that I'm think of right now.)

"A foolish consistency is the hobgoblin of little minds..."

Too much consistency is a sign of stubbornness, a lack of learning/thinking, and/or a lack of adapting to changing environments.

4 minutes ago, Constricting Officer said:

To this point it has worked well and I have received little to no additional questions.

Famous last words: "To this point it has worked well..."

12 minutes ago, Constricting Officer said:

Matthew Fleharty:

It means after I have posted the Q&A to FBO, via amendment, I will not do so again.

I will answer questions after that point, if received and applicable, but only to the entity who ask.

In that case, why wouldn't a prospective offeror simply wait to ask questions until after your deadline passes so that they are the only ones with that information?

13 minutes ago, Constricting Officer said:

I would also stat in that amendment that, "I will take and answer questions on an individual basis hereafter, as long as they are submitted electronically and not already answered in the solicitation."

What do you mean by "will take and answer" and "an individual basis"?

See FAR 2.101:

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“Acquisition” means the acquiring by contract with appropriated funds of supplies or services (including construction) by and for the use of the Federal Government through purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated, and evaluated. Acquisition begins at the point when agency needs are established and includes the description of requirements to satisfy agency needs, solicitation and selection of sources, award of contracts, contract financing, contract performance, contract administration, and those technical and management functions directly related to the process of fulfilling agency needs by contract.

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“Procurement” (see “acquisition”).

1 hour ago, StePa said:

I am obviously new to this and am not sure. I am actually trying to research what the exact clause is but our senior leadership mentioned it..so here I am searching endlessly for it. 

Any clarification would be greatly appreciated. 

Your search shouldn't be endless unless your contract is endless (which I doubt is the case).  As someone new to this, I cannot overstress the importance of reading your contract(s).

This is a Contract Award Process question how exactly?

I find it interesting (and antiquated) that there is this separation between any type of contract financing and the word "incentive."  Since cash flow is a vital part of a company's return on investment and cash flow is impacted by financing arrangements the two seem inseparable (to me).  This incongruity is probably what drove policies like we saw here with PBPs.

I'm curious to hear the story behind why this became the Problem of the Day.

Also, will this be a recurring thing?

PBPs don't serve as a cap that a contractor bills against gradually as they incur costs.  They're binary - when the contractor completes the event, they receive payment equal to the amount in the payment schedule for that milestone; until then, they don't.  See paragraph (a) of the clause you reference 252.232-7012 (emphasis added below):

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(a) Performance-based payments shall form the basis for the contract financing payments provided under this contract, and shall apply to the whole contract. The performance-based payments schedule (Contract Attachment ____) describes the basis for payment, to include identification of the individual payment events, evidence of completion, and amount of payment due upon completion of each event

Assuming the following clause is also in your contract, see FAR 52.232-32( c )(1) (emphasis added below):

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(1) The Contractor shall not be entitled to payment of a request for performance-based payment prior to successful accomplishment of the event or performance criterion for which payment is requested. The Contracting Officer shall determine whether the event or performance criterion for which payment is requested has been successfully accomplished in accordance with the terms of the contract. The Contracting Officer may, at any time, require the Contractor to substantiate the successful performance of any event or performance criterion which has been or is represented as being payable

33 minutes ago, here_2_help said:

How about we let our comments here stand for contractor and contracting officer to consider as they try to resolve without resorting to litigation?

I don't think the OP is the government's contracting officer.

See the following (emphasis added):

9 hours ago, Michele G said:

On a side note, I believe the milestone values were extremely high and the contractor front loaded their costs from the beginning, but I was met with resistance by the contracting officer to address this.

Am I wrong for not allowing the contractor to keep billing as they incur costs?

9 hours ago, Michele G said:

On a side note, I believe the milestone values were extremely high and the contractor front loaded their costs from the beginning, but I was met with resistance by the contracting officer to address this.

Stating "the contractor front loaded their costs" is a misnomer - you probably meant to say "the contractor front loaded their payments" (because if the contractor front loaded their costs, they likely wouldn't be trying to invoice for payments in excess of costs incurred).  As such, it may be worth noting that the contractor does not unilaterally determine the PBP schedule - those milestones and their amounts are agreed to by the contractor and the government's contracting officer.

1 hour ago, here_2_help said:

The DFARS clause is illegal and cannot be enforced, as it conflicts with Section 831 of the 2017 NDAA.

What if the contract was awarded prior to the passage of the 2017 NDAA?

In case this turns into a law vs. regulation discussion, here's a previous topic on that issue:

To each their own I suppose, best of luck to you charles.

So instead of asking five questions in your original post and creating a lot of noise, why not simply ask:

42 minutes ago, charles said:

If a contractor requested an award status 30 days after award, then would a potential protest be considered timely? 

42 minutes ago, charles said:

Retreadfed's response addresses the original question.

What was your original question?  I counted five...is it the one that came first, last,...?

EDIT: Clearly my use of the word "silly" got to you which wasn't my intent so my apologies for that.  I'd edit it out of my original post, but then that would simply make your response look, well "silly"

16 hours ago, charles said:

If a Part 13 supply acquisition meets the no notice requirement (absent requesting award status), then how is a prospective contractor supposed to know whether she was an unsuccessfull supplier?

What are you even trying to ask? Your previous sentence cites the two ways an offeror is notified of their lack of success: either by a required notice or by requesting notification.  Assuming an prospective contractor wants to know whether she was unsuccessful, why wouldn't the contractor simply "request award status?"  The premise of your line of questioning is silly.

8 hours ago, dacaan said:

Well the dictionary definition would be lawful or proper...which kind of brings back full circle. I think the rationale for the purchase is unlawful as stated "the purpose of awarding this contract is to build the industrial base" in the hopes that the awarded vendors will become sophisticated enough to compete with a vendor that has historically been awarded sole source contracts for this requirement. 

This is not uncommon (emphasis added below):

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6.202 -- Establishing or Maintaining Alternative Sources.

(a) Agencies may exclude a particular source from a contract action in order to establish or maintain an alternative source or sources for the supplies or services being acquired if the agency head determines that to do so would --

  (1) Increase or maintain competition and likely result in reduced overall costs for the acquisition, or for any anticipated acquisition;

  (2) Be in the interest of national defense in having a facility (or a producer, manufacturer, or other supplier) available for furnishing the supplies or services in case of a national emergency or industrial mobilization;

  (3) Be in the interest of national defense in establishing or maintaining an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center;

  (4) Ensure the continuous availability of a reliable source of supplies or services;

  (5) Satisfy projected needs based on a history of high demand; or

  (6) Satisfy a critical need for medical, safety, or emergency supplies.

(b)

  (1) Every proposed contract action under the authority of paragraph (a) of this section shall be supported by a determination and findings (D&F) (see Subpart 1.7) signed by the head of the agency or designee. This D&F shall not be made on a class basis.

  (2) Technical and requirements personnel are responsible for providing all necessary data to support their recommendation to exclude a particular source.

  (3) When the authority in subparagraph (a)(1) of this section is cited, the findings shall include a description of the estimated reduction in overall costs and how the estimate was derived.

Take a moment (or two) and think...assuming single points of failure are bad, why wouldn't an agency be permitted or have an interest in eliminating/reducing them?